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Judicial Review

Volume 744: debated on Tuesday 23 April 2013


Asked by

To ask Her Majesty’s Government how their proposed new policy on judicial review ensures the right to a fair hearing in respect of time for individual applicants to prepare and lodge their cases, and the opportunity for an oral permission hearing in all circumstances.

My Lords, I begin by congratulating the noble Baroness on her impeccable timing because today the Government published their response to the consultation on reforming judicial review. The response sets out changes to the judicial review procedure which the Government intend to take forward. As set out in the response, we believe that these changes to the fee structure, oral renewals and time limits will help to reduce the burden of judicial review while, most importantly, maintaining access to justice, the rule of law, and the right to a fair hearing.

My Lords, the consultation paper refers to problems with challenges to large planning developments. Why should individual applicants, often unfamiliar with legal processes or perhaps not even very good at reading and writing, like some Gypsies and Travellers, pay the price with so much less time? Secondly, does the Minister agree with Lord Justice Laws when he said,

“that judges … change their minds under the influence of oral argument”,

is central to the system, bearing in mind that more than 60% of all hearings are successful? Where is the justice in reducing them?

The noble Baroness is right to raise the important issue of vulnerable groups and people who represent themselves. However, a total of 11,359 applications were lodged in 2011, of which only 144 were successful. I hear what the noble Baroness says, and I am sure she will appreciate that for every application made in written form it is down to the judge to make an adjudication on whether it has merit to go forward. Even if the case is decided in the negative, the individual still has a right to take the matter forward to the Court of Appeal.

My Lords, will the Minister draw the attention of the Lord Chancellor to the oral evidence given to your Lordships’ Constitution Committee on 13 February by the president of the Supreme Court, the noble and learned Lord, Lord Neuberger of Abbotsbury? I refer in particular to where he said:

“If you have shorter time limits, the risk is that people start proceedings when maybe, if they had more time to think, they would not. There would be many more applications for extensions of time and you might find that the bright idea of cutting time limits turns out to increase the amount of litigation rather than decrease it”.

Does the Minister share these concerns? I declare my interest as a practising barrister.

The noble Lord always comes to these matters with great wisdom and experience, which I fully acknowledge. Various groups, including the judiciary, were fully consulted in putting forward the response. The senior judiciary who were consulted included the president of the Queen’s Bench Division, the Master of the Rolls, the vice-president of the Court of Appeal, the Civil Division and Lord Justice Richards, the deputy head of Civil Justice. As I said earlier, in the case of such appeals the judge is there to decide if an extension is required to the time period. The noble Lord may have an opinion that this may extend the period, which his quote highlighted, but it is important that the right thing is done. If the judge decides to extend the time, so be it.

My Lords, I declare a similar interest. The Government propose withdrawing the right to an oral hearing in cases deemed on paper to be totally without merit. Does my noble friend accept that unrepresented applicants often find it very difficult to express their cases adequately on paper, and that it is only at oral permission hearings that judges can sometimes discern from such applicants an arguable case which was not apparent on paper? Will the Government consider limiting the restriction of the right to an oral permission hearing to legally represented applicants?

I thank my noble friend for raising this concern, but I believe that the risk is somewhat limited. I am sure that many members of the judiciary both in here and those practising outside will agree that the test of “totally without merit” is something that is well understood by the profession and is, indeed, applied by judges. This reform applies only to the weakest cases, and as I said in a previous response, if there is still an issue, the right to apply to the Court of Appeal remains for the individual.

My Lords, does the Minister agree with the observation of the Master of the Rolls, Lord Dyson, that there is no principle more basic to our system of law than the maintenance of the rule of law itself and the constitutional protection afforded by judicial review? When will the Government publish their response to the consultation on their proposals, and can the Minister indicate whether the view of consultees that has emerged from the consultation on the question of shortening the time limits for procurement and planning cases has been noted?

First, I agree totally with the noble Lord. The point of judicial review is to hold the Executive and public bodies to account, and that is a principle to which the Government are utterly committed. I have referred already to the issue of time extension. If an extension of time is required, the judge can grant it. It is important to highlight three key points around these changes. The reduction in time limits on planning and procurement, the introduction of fees and the dismissal of decisions that are totally without merit were all referred to the judiciary and, indeed, carried their support. Matters were raised in the consultation which the judiciary felt were not right to take forward; the Government have listened and are not doing so.

My Lords, linked to the issue of judicial review is the idea of a residence test, which is presently being consulted on. If put into effect, that residence test would mean that someone here lawfully but who had not been here for 12 months or more would not be entitled to legal aid in civil actions, presumably including judicial review, however overwhelming their case might be. Does the Minister agree that such a proposal goes against the traditions and principles of British justice and is more akin to the traditions of more unsavoury judiciaries?

I do not agree with the noble Lord. It is right to say that our justice system is one of the best in the world, demonstrated even in cases such as that of Abu Qatada. Here is a man who does not believe in our democracy, who does not believe in the freedoms our country stands for, and who takes a noble faith, hijacks it and then presents it in his own erroneous way. Even then, our justice system stands up for him. That is British justice at its best and those rights are protected within judicial review. The noble Lord also noted that these matters are currently out for consultation. The whole issue of legal aid for anyone seeking to apply for it is to protect the vulnerable. That remains the central aim in terms of how the Government will continue to support such cases.